He likely has a clause in the employment agreement preventing him from competing in any way. Pretty standard
Then what resources would the remaining co-founder have to go through the US court system?
Lastly, leaving and re-starting doesn't have to mean the exact same product.
I know what you are saying, but Im pretty sure it could be side stepped with some creative thinking.
To bet on this would be to bet on the new company being a failure.
Because if it ever does become successful, plenty of lawyers would be willing to work on behalf of the ousted cofounder on contingency.